New Tenancy Law Regulations – Facilitating the Subletting of Flats on Online Platforms Such As Airbnb
A tenant who wishes to sublet his or her flat must obtain the landlord’s prior consent. Practice shows that this requirement is hardly compatible with the booking process for online platforms such as Airbnb: If the tenant does not wish to lose interested guests, he or she must respond to the booking request within a short period of time, usually within 24 hours. If the tenant waits longer with the booking confirmation, there’s a risk that the potential guest will seek an alternative property. The landlord, on the other hand, may follow the standard timeframe of up to two to four weeks to examine the tenant’s subletting request. For this reason, many tenants do not bother to obtain the landlord’s prior consent to sublet.
The Federal Council plans to remedy this problem by adding Art. 8a (new) to the Ordinance on Rental and Letting of Residential and Commercial Property (VMWG). The provision stipulates that the tenant may now ask his or her landlord for general consent to sublet a flat in accordance with Art. 262 of the Swiss Code of Obligations.
General Consent of the Landlord to the Sublet
By obtaining the landlord’s general consent to the sublet of a flat, the tenant’s previous obligation to obtain a separate consent from the landlord for each subletting of the flat shall no longer apply. The general consent of the landlord now takes its place.
In order to inform the landlord about the conditions of the sublet, the tenant must state the conditions in an application, namely the maximum rent, the maximum premises affected and the maximum number of occupants.
If the tenant complies with his her duty of notification, the landlord can only refuse general consent if the conditions of the sublet are abusive or if the landlord suffers significant disadvantages as a result of the sublet. The tenant therefore has a de facto fundamental right to “repeated short-term sublets”.
Unchanged Grounds for Refusal by the Landlord
The landlord’s grounds for refusal pursuant to Art. 262 Par. 2 of the Swiss Code of Obligations remain unchanged under the new tenancy law regulations. If the tenant establishes abusive sublet conditions in relation to the original rental contract or if the landlord suffers significant disadvantages, the landlord can continue to refuse his or her consent to the sublet or revoke a previously granted consent and ensure that any future subletting is prohibited by law.
In particular, the subletting conditions are considered abusive if the tenant makes an unjustified profit from the sublet by demanding a significantly higher subletting rate than the primary rental contract, which is not justified by the tenant’s costs.
A major disadvantage for the landlord is if the flat is subject to excessive wear and tear due to a high turnover of subtenants. This was the decision reached by the Zürich Rental Court in a recent case in which a flat was used by the tenant for two or three days a week and sublet, for up to six people at a time, over a longer period.
Cancellation of a Rental Contract for Subletting Without the Landlord’s Consent
The tenant who sublets his or her flat without the consent of the landlord risks extraordinary termination of the rental contract depending on the circumstances of the case. According to the Swiss Federal Supreme Court, a proper termination may already be justified if a tenant, against his or her better knowledge, does not obtain prior consent from the landlord to sublet. The tenant who does not comply with the written request of the landlord to disclose the conditions of the sublet risks an extraordinary termination of the rental contract.
The addition of Art. 8a (new) to the Ordinance on Rental and Letting of Residential and Commercial Property (VMWG) proposed by the Federal Council makes it considerably easier for tenants to request a landlord’s general approval for subletting.
Until Art. 8a (new) of the VMWG goes into force in January 2019, tenants must obtain a landlord’s consent for each sublet, unless the landlord already provided his or her general approval. If, on the other hand, the tenant sublets his or her flat without the landlord’s consent, he or she risks an extraordinary termination of the rental contract.
Even following the amendment to the tenancy law regulations, the landlord may refuse consent to the sublet if the conditions are abusive or if the landlord suffers significant disadvantages as a result of the sublet.
-MLaw Ralf Voger, Attorney at Law at Studhalter & Pfister Rechtsanwälte AG
A tenant who wants to sublet a property must respect the following conditions:
- The landlord’s consent must be obtained separately and in advance for each sublet. Any tenant who does not obtain the consent of the landlord risks the extraordinary termination of the rental agreement by the landlord.
- Following the implementation of the new tenancy law regulations (expected to come into force in January 2019), a tenant may now request a landlord’s general consent, which replaces the individual requests for consent.
- Do not stipulate any abusive sublet conditions. In particular, a tenant shall not demand an excessive sublet rate that exceeds his or her costs.
- The landlord must not suffer any significant disadvantages as a result of the subletting. In particular, there is no objective consideration such as subletting a 2 ½ room flat for six people at a time.
- The “perpetual” sublet without serious intention of the tenant to use the flat again later does not constitute an application of the legal claim to sublet and is not permitted without the landlord’s express consent.